Nees v. Julian Goldman Stores, Inc.

• Decision Date: 11 December 1928
• Docket Number: 6272,6273.
• Citation: 146 S.E. 61,106 W.Va. 502
• Parties: NEES v. JULIAN GOLDMAN STORES, Inc. (two cases).
• Court: West Virginia Supreme Court

146 S.E. 61

106 W.Va. 502

NEES v. JULIAN GOLDMAN STORES, Inc. (two cases).

Nos. 6272, 6273.

Supreme Court of Appeals of West Virginia.

December 11, 1928

Submitted October 23, 1928.

Syllabus by the Court.

In an action for damages against a master for a tortious act of his servant, alleged to have been committed in the course of his employment, wherein facts are alleged which support such allegation, the case thus presented should be submitted to a jury, and therefore, in such situation, a demurrer should not be sustained on the ground that the act was not committed in the course of the employment.

Error to Circuit Court, Wood County.

Separate suits by Edward T. Nees and by Erma Nees against the Julian Goldman Stores, Inc. Judgment sustaining demurrers to the amended declaration in each case, and plaintiffs bring error. Reversed and remanded.

Wm Bruce Hoff and Thayer M. McIntire, both of Parkersburg, for plaintiffs in error.

Russell Hiteshew & Adams, of Parkersburg, for defendant in error.

MAXWELL J.

Edward T. Nees and his wife, Erma Nees, prosecute these suits for damages arising out of an alleged assault upon Mrs. Nees by an agent of the defendant. The husband claims damages because of the loss of services and society of his wife due to the alleged wrong, and the wife demands damages for the personal injury. The demurrer to the amended declaration in each case was sustained. The cases come to this court on writs of error.

The gravamen of the complaint in each case is that on the 13th day of April, 1927, in the city of Parkersburg, an agent of the defendant, acting within the scope of his authority and employment, went to the home of the plaintiffs for the purpose of collecting from a domestic servant of the plaintiffs a certain sum of money which was claimed by the defendant to be due it on account of certain wearing apparel which defendant had sold to the servant on the installment plan, and that, the defendant's agent and the plaintiffs' servant becoming involved in a violent altercation in regard to said matter, and the attention of the female plaintiff being attracted by the loud and violent talk of the parties, she ordered the defendant's agent to leave the house; that the defendant's agent at first declined to accede to her request, but presently he did make his exit through the outside kitchen door, and then suddenly and unexpectedly to the female plaintiff, who had followed him to the door, and supposed that he had departed, he threw open the door with great force to re-enter the kitchen, and in so doing struck the female plaintiff violently in the abdomen with the door knob; and that, after having re-entered the kitchen, the defendant's agent struck and beat her, causing her serious personal injury, one incident whereof was a miscarriage.

In sustaining the demurrers to the declarations, the circuit court evidently adopted the theory urged by the defendant, namely, that in the alleged violent and improper treatment of the female plaintiff the agent of the defendant was not acting within the scope of his employment, and, therefore, that there was no liability on the defendant for the agent's conduct.

We are of opinion that the demurrers should have been overruled.

It is settled law that a master is liable for the torts of his servant or agent committed in the course of his employment. Eggleston v. Tanner, 86 W.Va. 385, 103 S.E. 113; Vance v. Frantz, 83 W.Va. 671, 99 S.E. 12; Hunt v. Di Bacco, 69 W.Va. 449, 71 S.E. 584; Mosely v. J. G. McCrory Co. of West Virginia, 101 W.Va. 480, 133 S.E. 73; Veneruso v. Spear & Co., 220 N.Y. 694, 116 N.E. 1082. Was the defendant's agent acting in the course of his employment? The amended declarations allege that fact, and further that the agent did the acts complained of under the direction and authority of the defendant. Can the court, notwithstanding such specific allegations, say, as a matter of law, that the agent was not acting in the course of his employment at the time of the commission of the assault? The query should be answered in the affirmative only if the court could properly say that the facts alleged disclose that the acts of the agent of which the complaint is made were not committed in the course of his employment. Demurrers are sustained where, despite the allegations that the acts of the agent were performed in the course of the employment, the facts alleged disclose otherwise. Johanson v. Pioneer Fuel Co., 72 Minn. 405, 75 N.W. 719; Campbell v. Northern P. R. Co., 51 Minn. 488, 53 N.W. 768; Davis v. Houghtellin, 33 Neb. 582, 50 N.W. 765, 14 L. R. A. 737. But that is not the situation here. On demurrer, a defendant in effect says that, admitting the truth of the averments of the declaration, there is nevertheless no liability on him. 1 Chitty, Pleading, p. 662. "A demurrer may be defined to be an admission of the facts alleged by the plaintiff, but a denial that they constitute any cause of action, and a submission of this question as a matter of law to the judgment of the court." Hogg, Pleading and Forms, p. 143.

As a general proposition, where a declaration otherwise sufficient alleges that a tortious act of an agent was committed in the course of his employment, the verity of that allegation becomes a jury question. This is essentially true where the facts alleged sustain such general allegation. In the New York case of Rounds v. D., L. & W. R. Co., 64 N.Y 129, 21 Am. Rep. 597, the court thus clearly states the rule: "If the master, when sued for an injury resulting from the tortious act of his servant while apparently engaged in executing his orders, claims exemption upon the ground that the servant was, in fact, pursuing his own purposes, without reference to his master's business, and was acting maliciously and wilfully, it must, ordinarily, be left to the jury to determine this issue upon a consideration of all the facts and circumstances proved." This rule is recognized and applied generally. Pennsylvania Mining Co. v. Jarnigan (C. C. A.) 222 F. 889; Vance v. Frantz, supra; Collins v. Butler, 179 N.Y. 156, 71 N.E. 746; Shear v. Singer Sewing Machine Co. (C. C.) 171 F. 678; ...